FINAL COPY
364-DAY
CREDIT AGREEMENT
DATED AS OF OCTOBER 25, 2002
AMONG
THE DETROIT EDISON COMPANY,
AS BORROWER
AND
THE INITIAL LENDERS NAMED HEREIN,
AS INITIAL LENDERS
AND
BARCLAYS BANK PLC,
as Administrative Agent
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., BANC ONE CAPITAL MARKETS, INC.,
as Co-Syndication Agent as Co-Syndication Agent
and
o o
as Co-Documentation Agent as Co-Documentation Agent
================================================================================
BARCLAYS CAPITAL BANC ONE CAPITAL MARKETS, INC.
as Co-Lead Arrangers and Joint Book Runners
================================================================================
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
SECTION 1.01. Certain Defined Terms.........................................................1
SECTION 1.02. Computation of Time Periods..................................................12
SECTION 1.03. Accounting Terms.............................................................12
ARTICLE II AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES...................................................13
SECTION 2.01. The Revolving Credit Advances................................................13
SECTION 2.02. Making the Revolving Credit Advances.........................................13
SECTION 2.03. Fees.........................................................................14
SECTION 2.04. Termination or Reduction of the Commitments..................................15
SECTION 2.05. Repayment of Revolving Credit Advances.......................................15
SECTION 2.06. Interest on Revolving Credit Advances........................................15
SECTION 2.07. Interest Rate Determination..................................................16
SECTION 2.08. Optional Conversion of Revolving Credit Advances.............................17
SECTION 2.09. Prepayments of Revolving Credit Advances.....................................17
SECTION 2.10. Increased Costs..............................................................18
SECTION 2.11. Illegality...................................................................19
SECTION 2.12. Payments and Computations....................................................19
SECTION 2.13. Taxes........................................................................20
SECTION 2.14. Sharing of Payments, Etc.....................................................22
SECTION 2.15. Use of Proceeds..............................................................23
SECTION 2.16. Extensions of Revolver Termination Date......................................23
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.................................24
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING.............................................................24
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01........................24
SECTION 3.02. Conditions Precedent to Each Borrowing.......................................26
SECTION 3.03. Determinations Under Section 3.01............................................26
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................................................................27
SECTION 4.01. Representations and Warranties of the Borrower...............................27
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
i
ARTICLE V COVENANTS OF THE BORROWER.............................................................................29
SECTION 5.01. Affirmative Covenants........................................................29
SECTION 5.02. Negative Covenants...........................................................31
ARTICLE VI EVENTS OF DEFAULT....................................................................................32
SECTION 6.01. Events of Default............................................................32
ARTICLE VII THE AGENT...........................................................................................35
SECTION 7.01. Authorization and Action.....................................................35
SECTION 7.02. Agent's Reliance, Etc........................................................35
SECTION 7.03. Barclays and Affiliates......................................................36
SECTION 7.04. Lender Credit Decision.......................................................36
SECTION 7.05. Indemnification..............................................................36
SECTION 7.06. Successor Agent..............................................................36
ARTICLE VIII MISCELLANEOUS......................................................................................37
SECTION 8.01. Amendments, Etc..............................................................37
SECTION 8.02. Notices, Etc.................................................................37
SECTION 8.03. No Waiver; Remedies..........................................................38
SECTION 8.04. Costs and Expenses...........................................................38
SECTION 8.05. Right of Set-off.............................................................39
SECTION 8.06. Binding Effect...............................................................40
SECTION 8.07. Assignments, Designations and Participations.................................40
SECTION 8.08. Confidentiality..............................................................44
SECTION 8.09. Governing Law................................................................44
SECTION 8.10. Execution in Counterparts....................................................44
SECTION 8.11. Jurisdiction, Etc............................................................44
SECTION 8.12. Waiver of Jury Trial.........................................................45
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
ii
SCHEDULES AND EXHIBITS
Schedules
Schedule I - List of Applicable Lending Offices
Pricing Schedule
Exhibits
Exhibit A - Form of Note (If Requested)
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Certificate by Borrower
Exhibit E - Form of Opinion of Counsel to the Borrower
Exhibit F - Form of Compliance Certificate
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
iii
364-DAY
CREDIT AGREEMENT dated as of October 25, 2002 among
THE
DETROIT EDISON COMPANY, a Michigan corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, and BARCLAYS BANK PLC ("Barclays"), as
Administrative Agent (the "Agent") and BANC ONE CAPITAL MARKETS, INC., as
Co-Syndication Agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., as Co-Syndication Agent for
the Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS.
The Borrower has requested that the Initial Lenders enter into
this Agreement, and the Initial Lenders have indicated their willingness to
enter into this Agreement upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree, subject to the satisfaction of the conditions set forth in Article III,
as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Barclays with its office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Account No. 050-019104, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"Agents" means the Agent and each Co-Syndication Agent,
collectively.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, (i) with respect to
all Base Rate Advances, 0.0% per annum, and (ii) with respect to all
Eurodollar Rate Advances, the percentage rate per annum which is
applicable at such time with respect to Eurodollar Rate Advances as set
forth in the Pricing Schedule.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
1
"Applicable Percentage" means, as of any date, the percentage
rate per annum at which Facility Fees are accruing on each Lender's
Commitment (without regard to usage) at such time as set forth in the
Pricing Schedule.
"Applicable Utilization Fee Rate" means, as of any date, the
percentage rate per annum at which Utilization Fees accrue on all
Revolving Credit Advances at such time as set forth in the Pricing
Schedule.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Audited Statements" means the Consolidated balance sheets of
the Borrower as at December 31, 2001, and the related Consolidated
statements of income and cash flows of the Borrower for the fiscal year
then ended, accompanied by the opinion thereon of the Borrower's
independent public accountants.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest established by Barclays in
New York,
New York, from time to time, as Barclays' base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Barclays on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of
New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Barclays from three
New York
certificate of deposit dealers of recognized standing selected
by Barclays, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Barclays with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Barclays for determining the
then current annual assessment payable by Barclays to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Barclays in the United
States; and
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
2
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type and (in the case of
Eurodollar Rate Advances) having the same Interest Period, made by each
of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in
New York City or Chicago,
Illinois and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
"Capitalization" means the sum of total net worth plus
Consolidated Debt.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to the Agent or such Lender from a source other than the
Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt
of others referred to in clauses (a) through (g) above or clause (i)
below guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through
an agreement (1) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (2) to purchase, sell
or lease (as lessee or lessor)
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
3
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the
holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received
or such services are rendered) or (4) otherwise to assure a creditor
against loss, and (i) all Debt referred to in clauses (a) through (h)
above secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt. See the definition of "Nonrecourse Debt"
below.
"Declining Lender" has the meaning specified in Section 2.16.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designating Lender" has the meaning specified in Section
8.07(h).
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"DTE Energy" means DTE Energy Company, a Michigan corporation.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each case
determined in accordance with GAAP for such period less the aggregate
amount, if any, of securitization bond charges (or similar charges
imposed on customers for the purpose of servicing Securitization Bonds)
collected by or on behalf of the Securitization SPE, to the extent such
charges are included in the calculation of net income (or net loss).
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus
of at least $250,000,000; (iv) a savings and loan association or
savings bank organized under the laws of the United States, or any
State thereof, and having a combined capital and surplus of at least
$250,000,000; (v) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having a combined capital and surplus of at least
$250,000,000, so long as such bank is acting
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
4
through a branch or agency located in the United States; (vi) the
central bank of any country that is a member of the Organization for
Economic Cooperation and Development; (vii) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having a combined capital and
surplus of at least $250,000,000; and (viii) any other Person approved
by the Agent and, so long as no Event of Default shall be continuing,
the Borrower, such approval not to be unreasonably withheld or delayed
by either party; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
5
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the Borrower or any
ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount approximately equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The Eurodollar Rate for any Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
6
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in
New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Hedging Debt" means all Debt arising under any Hedge
Agreement in respect of fluctuations in commodity prices.
"Existing
Credit Agreement" means that certain
Credit
Agreement, dated as of November 7, 2001, among the Borrower, the
lenders parties thereto, and Barclays Bank PLC, as administrative
agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and Banc One Capital Markets,
Inc., as co-syndication agents, as the same has been amended, restated,
supplemented or otherwise modified from time to time.
"Extending Lenders" has the meaning specified in Section 2.16.
"Facility Fee" has the meaning specified in Section 2.03(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Financial Officer" of any Person means the chief executive
officer, president, chief financial officer, any vice president,
controller, assistant controller, treasurer or any assistant treasurer
of such Person.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
7
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Agent not
later than 11:00 A.M. (
New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period
that ends after the Revolver Termination Date then in effect;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Junior Subordinated Debt" means (a) subordinated junior
deferrable interest debentures of the Borrower, (b) the related
preferred securities, if applicable, of Subsidiaries of the Borrower
and (c) the related subordinated guarantees, if applicable, of the
Borrower, in each case, from time to time outstanding.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
8
or retained security title of a conditional vendor and any easement,
right of way or other encumbrance on title to real property.
"Loan Documents" means this Agreement and the Notes.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the Agent
or any Lender under any Loan Document or (c) the ability of the
Borrower to perform its obligations under any Loan Document to which it
is a party.
"Maximum Facility Amount" means $135,000,000.
"MichCon" means Michigan Consolidated Gas Company, a Michigan
corporation, wholly owned (indirectly) by DTE Energy.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"▇▇▇▇▇'▇ Rating" is defined in the Pricing Schedule.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Nonrecourse Debt" means Debt of the Borrower or any of its
Subsidiaries in respect of which no recourse may be had by the
creditors under such Debt against the Borrower or such Subsidiary in
its individual capacity or against the assets of the Borrower or such
Subsidiary, other than assets which were purchased by the Borrower or
such Subsidiary with the proceeds of such Debt; it being understood
that Securitization Bonds shall constitute Nonrecourse Debt for all
purposes of the Loan Documents, except to the extent (and only to the
extent) of any claims made against the Borrower in respect of its
indemnification obligations relating to such Securitization Bonds.
"Note" has the meaning specified in Section 2.17.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
9
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pricing Schedule" means the Pricing Schedule identifying the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee Rate attached hereto identified as such.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person, or
other assets owned by such Person.
"Receivables Purchase Documents" means those documents entered
into in connection with the receivables purchase facility among the
Borrower, Corporate Asset Funding Company, Inc., Citibank, N.A. and
Citicorp North America, Inc. dated as of March 9, 2001 (including any
amendments to or replacements of such facility) and those documents
entered into in connection with any series of receivables purchase or
sale agreements generally consistent with terms contained in comparable
structured finance transactions pursuant to which the Borrower or any
of its Subsidiaries, in their respective capacities as sellers or
transferors of any receivables, sell or transfer to SPCs all of their
respective rights, title and interest in and to certain receivables for
further sale or transfer to other purchasers of or investors in such
assets (and the other documents, instruments and agreements executed in
connection therewith), as any such agreements may be amended, restated,
supplemented or otherwise modified from time to time, or any
replacement or substitution therefor
"Receivables Purchase Facility" means the receivables purchase
facility among the Borrower, Corporate Asset Funding Company, Inc.,
Citibank, N.A., and Citicorp North America, Inc. dated as of March 9,
2001 (including any amendments to or replacements of such facility) and
any other securitization facility made available to the Borrower or any
of its Subsidiaries, pursuant to which receivables of the Borrower or
any of its Subsidiaries are transferred to one or more SPCs, and
thereafter to certain investors, pursuant to the terms and conditions
of the Receivables Purchase Documents
"Reference Banks" means Citibank, N.A., Barclays Bank PLC and
Bank One, NA (Main Office - Chicago).
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed more than
fifty percent (50%) of the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having more than fifty
percent (50%) of the Commitments.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
10
"Revolver Termination Date" means the earlier of (a) October
24, 2003 or, if extended pursuant to Section 2.16, the date that is 364
days after the Revolver Termination Date then in effect, and (b) the
date of termination in whole of the Commitments pursuant to Section
2.04 or 6.01; provided, however, that the Revolver Termination Date of
any Lender that is a Declining Lender to any requested extension
pursuant to Section 2.16 shall be the Revolver Termination Date in
effect immediately prior to the date on which such extension was
granted for all purposes of this Agreement.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Borrowing, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving
Credit Advance).
"S&P" means Standard & Poor's Ratings Services, a division of
the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"S&P Rating" is defined in the Pricing Schedule.
"SEC Reports" means the following reports and financial
statements of the Borrower:
(i) the Borrower's Annual Report on Form 10-K for the
year ended December 31, 2001, as filed with or sent to the
Securities and Exchange Commission, including therein the
Audited Statements of the Borrower, as updated in the
Borrower's Current Report on Form 8-K dated September 17,
2002, as filed with or sent to the Securities and Exchange
Commission; and
(ii) the Borrower's Quarterly Report on Form 10-Q for
the quarter ended June 30, 2002, including therein the
Unaudited Statements of the Borrower, and the Borrower's
Current Reports on Form 8-K, if any, provided to the Lenders
prior to the date of this Agreement.
"SPC" means any special purpose entity established for the
purpose of purchasing receivables in connection with a receivables
securitization transaction permitted under the terms of this Agreement
"SPV" has the meaning specified in Section 8.07(h).
"Securitization Bonds" means Debt of the Securitization SPE,
issued pursuant to Enrolled Senate ▇▇▇▇ No. 1253, Public Act 142 of
2000 of the State of Michigan.
"Securitization SPE" means The Detroit Edison Securitization
Funding LLC, a single-member limited liability company organized under
the laws of the State of Michigan, all of the membership interest in
which is held directly by the Borrower.
"Significant Subsidiary" means any Subsidiary of the Borrower
(A) the total assets (after intercompany eliminations) of which exceed
30% of the total assets of the Borrower and its Subsidiaries or (B) the
net worth of which exceeds 30% of the Consolidated Net Worth of the
Borrower and its Subsidiaries, in each case as shown on
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
11
the audited consolidated financial statements of the Borrower as of the
end of the fiscal year immediately preceding the date of determination.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries
or by one or more of such Person's other Subsidiaries.
"Three-Year Agreement" means that certain $65,000,000
three-year
credit agreement dated as of October 25, 2002, by and among
the Borrower, the Lenders and the Agents, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Unaudited Statements" means the unaudited condensed
Consolidated balance sheets of the Borrower, as at June 30, 2002, and
the related condensed Consolidated statements of income and cash flows
of the Borrower for the six-month period then ended, duly certified by
a Financial Officer of the Borrower.
"Utilization Fee" has the meaning specified in Section
2.03(c).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
12
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Revolver Termination Date in
an aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Lender's name on Schedule 1 hereto or, if such Lender has entered
into any Assignment and Acceptance, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(d), as such amount may be
reduced pursuant to Section 2.04 (such Lender's "Commitment"). Each Borrowing
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Revolving Credit Advances of
the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.09 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances.
(a) Each Borrowing shall be made on notice, given not later
than 11:00 A.M. (
New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or 10:00 A.M. (
New York City time) on the Business Day of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Borrower to the Agent, which shall give to each Lender prompt notice
thereof by telecopier or telex. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telephone, confirmed immediately in writing, telecopier
or telex in substantially the form of Exhibit B hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Revolving Credit Advances
comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Revolving Credit Advance. Each Lender shall, before 12:00
noon (New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000
or if the obligation of the Lenders to make Eurodollar Rate Advances shall then
be suspended pursuant to Section 2.07 or 2.11 and (ii) at no time shall the sum
of (x) all Borrowings comprising Eurodollar Rate Advances outstanding hereunder
and (y) all "Borrowings" comprising "Eurodollar Rate Advances" outstanding
under, and as such terms are defined in, the Three-Year Agreement, be greater
than ten.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
13
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Revolving Credit Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Advance
on the date of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Revolving Credit Advance to be made by
such other Lender on the date of any Borrowing.
SECTION 2.03. Fees.
(a) Facility Fee. The Borrower agrees to pay to the Agent for
the account of each Lender a facility fee (the "Facility Fee") on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until all of the Revolving Credit Advances have been paid in full and the
Commitments under this Agreement have been terminated at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December, and on
the Revolving Loan Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
14
(c) Utilization Fee. If the aggregate outstanding amount of
(i) all Revolving Credit Advances hereunder and (ii) all "Revolving Credit
Advances" under (and as defined in) the Three-Year Agreement exceeds
thirty-three percent (33%) of the aggregate amount of (x) all Commitments
hereunder and (y) all "Commitments" under (and as defined in) the Three-Year
Agreement then in effect on such date (or, if any of the Commitments or
"Commitments" have been terminated, the aggregate amount of all Commitments and
"Commitments" in effect immediately prior to such termination), the Borrower
will pay to the Agent for the ratable benefit of the Lenders a utilization fee
(the "Utilization Fee") at a per annum rate equal to the Applicable Utilization
Fee Rate in effect from time to time payable on the aggregate outstanding amount
of all Revolving Credit Advances on such date, payable in arrears quarterly on
the last day of each March, June, September and December, and on the Revolving
Loan Termination Date.
SECTION 2.04. Termination or Reduction of the Commitments.
(a) The Commitments shall be automatically terminated on the
Revolver Termination Date.
(b) The Borrower shall have the right, upon at least three
Business Days' notice to the Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the Lenders, provided
that each partial reduction shall be in the aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. Once terminated, a Commitment
or portion thereof may not be reinstated.
SECTION 2.05. Repayment of Revolving Credit Advances. The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Revolver Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
SECTION 2.06. Interest on Revolving Credit Advances.
(a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to each Lender
from the date of such Revolving Credit Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in
effect from time to time plus (y) the Applicable Margin in
effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during
such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Revolving Credit Advance is a Eurodollar Rate Advance, a
rate per annum equal at all times during each Interest Period
for such Revolving Credit Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Revolving
Credit Advance plus (y) the Applicable Margin in effect from
time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such
Interest
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
15
Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. (i) Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above, and (ii) the Borrower shall pay, to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination.
(a) Each Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Eurodollar Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.06(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Eurodollar Rate Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so
notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance
will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into, Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Eurodollar
Rate Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $5,000,000, such Eurodollar
Rate Advances shall automatically Convert into Base Rate Advances.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
16
(e) Upon the occurrence and during the continuance of any
Event of Default, (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely
information to the Agent for determining the Eurodollar Rate for any Eurodollar
Rate Advances:
(i) the Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each
such Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if such Eurodollar Rate Advance
is then a Base Rate Advance, will continue as a Base Rate
Advance), and
(iii) the obligation of the Lenders to make
Eurodollar Rate Advances or to Convert Revolving Credit
Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.11, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type (it being
understood that such Conversion of a Revolving Credit Advance or of its Interest
Period does not constitute a repayment or prepayment of such Revolving Credit
Advance); provided, however, that any Conversion of Eurodollar Rate Advances
into Base Rate Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Revolving Credit Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Revolving Credit Advances to
be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Eurodollar Rate Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments of Revolving Credit Advances.
(a) Optional Prepayment. The Borrower may on any Business Day,
upon notice given to the Agent not later than 11:00 A.M. (New York City time),
(i) on the same day for Base Rate Advances and (ii) on the second Business Day
prior to the prepayment in the case of Eurodollar Rate Advances stating the
proposed date and aggregate principal amount of the prepayment (and if such
notice is given the Borrower shall) prepay the outstanding principal amount of
the Revolving Credit Advances comprising part of the same Borrowing in whole or
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
17
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; provided, however, that (x) each partial
prepayment shall be in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) in the event of any
such prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory Prepayment. The Borrower shall, upon five
Business Days notice from the Agent given at the request or with the consent of
the Required Lenders, prepay the aggregate principal amount outstanding plus all
interest thereon and all other amounts payable hereunder or under the Notes, in
the event that: (i) any Person or two or more Persons acting in concert (other
than DTE Energy or any of its Subsidiaries) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing 20% or more of the combined voting power of all
Voting Stock of the Borrower; or (ii) any Person or two or more Persons acting
in concert (other than DTE Energy or any of its Subsidiaries) shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of
the power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower.
SECTION 2.10. Increased Costs.
(a) If, due to either (i) the introduction of or any change in
or in the interpretation of any law or regulation or (ii) the compliance with
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances (excluding for purposes of this Section 2.10 any such
increased costs resulting from (i) Taxes or Other Taxes (as to which Section
2.13 shall govern) and (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost.
A certificate as to the amount of such increased cost, submitted to the Borrower
and the Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
18
such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(c) In the event that a Lender demands payment from the
Borrower for amounts owing pursuant to subsection (a) or (b) of this Section
2.10, the Borrower may, upon payment of such amounts and subject to the
requirements of Sections 8.04 and 8.07, substitute for such Lender another
financial institution, which financial institution shall be an Eligible Assignee
and shall assume the Commitments of such Lender and purchase the Revolving
Credit Advances held by such Lender in accordance with Section 8.07, provided,
however, that (i) no Default shall have occurred and be continuing, (ii) the
Borrower shall have satisfied all of its obligations in connection with the Loan
Documents with respect to such Lender, and (iii) if such assignee is not a
Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall
have paid the Agent a $3,000 administrative fee.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance or a Revolving
Credit Advance that bears interest at the rate set forth in Section 2.06(a)(i),
as the case may be, and (ii) the obligation of the Lenders to make Eurodollar
Rate Advances or to Convert Revolving Credit Advances into Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations.
(a) The Borrower shall make each payment hereunder and under
the Notes not later than 11:00 A.M. (New York City time) on the day when due in
U.S. dollars to the Agent at the Agent's Account in same day funds and without
set off, deduction or counterclaim. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest,
facility fees or the Utilization Fee ratably (other than amounts payable
pursuant to Section 2.10, 2.13 or 8.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
19
charge from time to time against any or all of the Borrower's accounts with such
Lender any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of facility fees and the Utilization Fee shall be made by the
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, facility fees or the Utilization Fee are
payable. Each determination by the Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, facility fee or the
Utilization Fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes.
(a) Any and all payments by the Borrower hereunder or under
the Notes shall be made, in accordance with Section 2.12, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction under the laws of which such Lender or the Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) such Lender or
the Agent (as the
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
20
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.13)
imposed on or paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two original Internal
Revenue Service Form W-8BEN or W-8ECI, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If the forms provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender provides the appropriate forms certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be considered excluded
from Taxes for periods governed by such form; provided, however, that, if at the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
21
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any
form or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrower and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) In the event that a Lender demands payment from the
Borrower for amounts owing pursuant to subsection (a) or (b) of this Section
2.13, the Borrower may, upon payment of such amounts and subject to the
requirements of Sections 8.04 and 8.07, substitute for such Lender another
financial institution, which financial institution shall be an Eligible Assignee
and shall assume the Commitments of such Lender and purchase the Revolving
Credit Advances held by such Lender in accordance with Section 8.07, provided,
however, that (i) no Default shall have occurred and be continuing, (ii) the
Borrower shall have satisfied all of its obligations in connection with the Loan
Documents with respect to such Lender, and (iii) if such assignee is not a
Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall
have paid the Agent a $3,000 administrative fee.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.14 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
22
SECTION 2.15. Use of Proceeds. The proceeds of the Revolving
Credit Advances shall be available (and the Borrower agrees that it shall use
such proceeds) solely for general corporate purposes, including commercial paper
liquidity, of the Borrower and its Subsidiaries.
SECTION 2.16. Extensions of Revolver Termination Date. No
earlier than 45 days and no later than 30 days prior to the Revolver Termination
Date in effect at any time, the Borrower may, by written notice to the Agent,
request that such Revolver Termination Date be extended for a period of 364
days. Such request shall be irrevocable and binding upon the Borrower. The Agent
shall promptly notify each Lender of such request. If a Lender agrees, in its
individual and sole discretion, to so extend its Commitment (an "Extending
Lender"), it shall deliver to the Agent a written notice of its agreement to do
so no earlier than 30 days and no later than 20 days prior to such Revolver
Termination Date and the Agent shall notify the Borrower of such Extending
Lender's agreement to extend its Commitment no later than 15 days prior to such
Revolver Termination Date. The Commitment of any Lender that fails to accept or
respond to the Borrower's request for extension of the Revolver Termination Date
(a "Declining Lender") shall be terminated on the Revolver Termination Date
originally in effect (without regard to any extension by other Lenders) and on
such Revolver Termination Date the Borrower shall pay in full the principal
amount of all Revolving Credit Advances owing to such Declining Lender, together
with accrued interest thereon to the date of such payment of principal and all
other amounts payable to such Declining Lender under this Agreement. The Agent
shall promptly notify each Extending Lender of the aggregate Commitments of the
Declining Lenders. The Extending Lenders, or any of them, may offer to increase
their respective Commitments by an aggregate amount up to the aggregate amount
of the Declining Lenders' Commitments and any such Extending Lender shall
deliver to the Agent a notice of its offer to so increase its Commitment no
later than 15 days prior to such Revolver Termination Date. To the extent of any
shortfall in the aggregate amount of extended Commitments, the Borrower shall
have the right to require any Declining Lender to assign in full its rights and
obligations under this Agreement to an Eligible Assignee designated by the
Borrower and acceptable to the Agent, that agrees to accept all of such rights
and obligations (a "Replacement Lender"), provided that (i) such increase and/or
such assignment is otherwise in compliance with Section 8.07 (provided that the
$3,000 processing and recording fee in respect of such assignment shall be
payable by the Borrower), (ii) such Declining Lender receives payment in full of
the principal amount of all Revolving Credit Advances owing to such Declining
Lender, together with accrued interest thereon to the date of such payment of
principal and all other amounts payable to such Declining Lender under this
Agreement, and (iii) any such increase shall be effective on the Revolver
Termination Date in effect at the time the Borrower requests such extension and
any such assignment shall be effective on the date specified by the Borrower and
agreed to by the Replacement Lender and the Agent. If Extending Lenders and
Replacement Lenders provide Commitments in an aggregate amount at least equal to
51% of the aggregate amount of the Commitments outstanding 30 days prior to the
Revolver Termination Date in effect at the time the Borrower requests such
extension, the Revolver Termination Date shall be extended by 364 days for such
Extending Lenders.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
23
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Revolving Credit Advance made by such Lender
from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will
record (i) the date and the amount of each Revolving Credit Advance made
hereunder and the Interest Period, if any, applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder, (iii) the effective date and amount of
each Assignment and Acceptance delivered to and accepted by it and the parties
thereto pursuant to Section 8.07, (iv) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(c) The entries maintained in the accounts maintained pursuant
to clauses (a) and (b) above shall be prima facie evidence of the existence and
amounts of the obligations hereunder and under the Notes therein recorded;
provided, however, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay such obligations in accordance with their terms.
(d) Any Lender may request that its Revolving Credit Advances
be evidenced by a promissory note representing its Revolving Credit Advances
substantially in the form of Exhibit A (each, a "Note"). In such event, the
Borrower shall prepare, execute and deliver to such Lender such Note payable to
the order of such Lender. Thereafter, the Revolving Credit Advances evidenced by
each such Note and interest thereon shall at all times (including after any
assignment pursuant to Section 8.07) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to Section
8.07, except to the extent that any such Lender or assignee subsequently returns
any such Note for cancellation and requests that such Revolving Credit Advances
once again be evidenced as described in clauses (a) and (b) above.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
date hereof (the "Effective Date"), provided that the following conditions
precedent have been satisfied on such date:
(a) There shall have occurred no Material Adverse Change since
June 30, 2002.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its Significant
Subsidiaries pending or threatened before any
24
court, governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect other than the matters disclosed or contemplated
in the SEC Reports (the "Disclosed Litigation") or (ii) purports to affect the
legality, validity or enforceability of any Loan Document or the consummation of
the transactions contemplated hereby and there shall have been no adverse change
in the status, or financial effect on the Borrower or any of its Significant
Subsidiaries of the Disclosed Litigation from that disclosed or contemplated in
the SEC Reports.
(c) The Lenders shall have been given such access, as such
Lenders have reasonably requested, to the management, records, books of account,
contracts and properties of the Borrower and its Significant Subsidiaries as
they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall have
been obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the transactions contemplated by the
Loan Documents.
(e) The Borrower shall have notified each Lender and the Agent
in writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and
reasonable expenses of the Agent and the Lenders with respect to this Agreement
for which the Agent shall have made reasonable demand in accordance with Section
8.04 on or prior to the Effective Date.
(g) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(iii) The Borrower shall have delivered a
certificate, substantially in the form of Exhibit D hereto,
signed on behalf of the Borrower by a Financial Officer of the
Borrower.
(h) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance satisfactory to
the Agent and (except for any Notes requested by the Lenders) in sufficient
copies for each Lender:
(i) Notes, if any, to the order of each Lender
requesting the issuance of a Note as of the Closing Date
pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving each Loan Document to
which it is a party, and of all
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
25
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to each Loan
Document to which it is a party.
(iii) A certificate of the Corporate Secretary or an
Assistant Corporate Secretary of the Borrower certifying the
names and true signatures of the officers of the Borrower
authorized to sign each Loan Document to which it is a party
and the other documents to be delivered hereunder or
thereunder.
(iv) Copies of the SEC Reports.
(v) A favorable opinion of ▇.▇. ▇▇▇▇▇▇, the General
Counsel of the Borrower, substantially in the form of Exhibit
E hereto and as to such other matters as any Lender through
the Agent may reasonably request.
(vi) Evidence satisfactory to the Agent that the
Existing
Credit Agreement shall have been or shall
simultaneously with the initial Revolving Credit Advance
hereunder be terminated (except for those provisions that
expressly survive the termination thereof) and all loans
outstanding and other amounts owed to the lenders or agents
thereunder shall have been simultaneously with the initial
Revolving Credit Advance hereunder be paid in full.
(i) The Three-Year Agreement shall have been duly executed by
all parties thereto.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make a Revolving Credit Advance on the occasion of
each Borrowing shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing and the acceptance by the Borrower
of the proceeds of such Borrowing shall constitute a representation and warranty
by the Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such
Borrowing, before and after giving effect to such Borrowing
and to the application of the proceeds therefrom, as though
made on and as of such date, and
(ii) no event has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds therefrom, that constitutes a Default; and
(b) the Agent shall have received such other approvals,
opinions or documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
26
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Lenders unless an officer of the Agent
responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice
to the Lenders, designates as the proposed Effective Date, specifying its
objection thereto. The Agent shall promptly notify the Lenders of the occurrence
of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The execution, delivery and performance by the Borrower of
the Loan Documents to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate action,
and do not contravene (i) the Borrower's charter or by-laws or (ii) law or any
contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and performance by
the Borrower of this Agreement, the Notes or any other Loan Document to which it
is a party.
(d) This Agreement has been, and each of the Notes and each of
the other Loan Documents to which it is a party when delivered hereunder will
have been, duly executed and delivered by the Borrower. This Agreement is, and
each of the Notes and each of the other Loan Documents to which it is a party
when delivered hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their respective
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors rights generally.
(e) The Audited Statements of the Borrower and the Unaudited
Statements of the Borrower, copies of each of which have been furnished to each
Lender, fairly present, subject in the case of Unaudited Statements to normal
year-end audit adjustments, the Consolidated financial condition, results of
operations and cash flows of the relevant Persons and entities, as at the dates
and for the periods therein indicated, all in accordance with generally accepted
accounting principles consistently applied. Since June 30, 2002, there has been
no Material Adverse Change, except as shall have been disclosed or contemplated
in the SEC Reports.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation, any
Environmental Action, affecting the Borrower or any of the Significant
Subsidiaries before any court, governmental agency or arbitrator that (i) could
be reasonably likely to have a Material Adverse Effect (other than the Disclosed
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
27
Litigation) or (ii) purports to affect the legality, validity or enforceability
of this Agreement, any Note or any other Loan Document or the consummation of
the transactions contemplated hereby and there has been no adverse change in the
status of any Disclosed Litigation, or its financial effect on the Borrower or
any of the Significant Subsidiaries from that disclosed or contemplated in the
SEC Reports that could be reasonably likely to have a Material Adverse Effect.
(g) The operations and properties of the Borrower and each of
the Significant Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with such
Environmental Laws and Environmental Permits has been resolved without ongoing
obligations or costs, except as disclosed or contemplated in the SEC Reports,
and no circumstances exist that could be reasonably likely to (i) form the basis
of an Environmental Action against the Borrower or any of the Significant
Subsidiaries or any of their properties that could have a Material Adverse
Effect or (ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law that
could have a Material Adverse Effect.
(h) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service, is complete and accurate and fairly presents
the funding status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(j) Neither the Borrower nor any ERISA Affiliate has incurred
or is reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan.
(k) Neither the Borrower nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred
to in subsection (e) above, the Borrower and its Subsidiaries have no material
liability with respect to "expected post retirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No. 106.
(m) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Revolving Credit Advance will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock; and after applying the proceeds of
each Revolving Credit Advance hereunder, margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System)
constitutes less than twenty-five percent (25%) of the value of those assets of
the Borrower and its Subsidiaries which are subject to any limitation on sale or
pledge, or any other restriction hereunder.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
28
(n) Neither the Borrower nor any of its Subsidiaries is, or
after the making of any Revolving Credit Advance or the application of the
proceeds or repayment thereof, or the consummation of any of the other
transactions contemplated hereby, will be, an "investment company", or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company" (within the meaning of the Investment Company Act of 1940,
as amended).
(o) The Borrower is a "public utility company" and a
"subsidiary company" of DTE Energy, which is a "holding company" as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended (the
"1935 Act"), and such "holding company" and the Borrower are currently exempt
from the provisions of the 1935 Act (except Section 9 thereof).
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Revolving
Credit Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided, however, that neither
the Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
(including customary self-insurance) in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower shall not be required to preserve any right
or franchise if the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Borrower and that the loss thereof is not disadvantageous in
any material respect to the Borrower or the Lenders.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
29
(e) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of, the Borrower and any of the
Significant Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of the Significant Subsidiaries with any of their officers
or directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Significant
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Subject to clause (d)
above, maintain and preserve, and cause each of its Significant Subsidiaries to
maintain and preserve, all of their respective properties that are used or
useful in the conduct of their respective businesses in good working order and
condition, ordinary wear and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 65
days after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of
such quarter and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter;
(ii) as soon as available and in any event within 115
days after the end of each fiscal year of the Borrower, a copy
of the Annual Report on Form 10-K for such year for the
Borrower and its Consolidated Subsidiaries, as filed with or
sent to the Securities and Exchange Commission, containing the
Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion by Deloitte & Touche LLP or
other independent public accountants acceptable to the
Required Lenders;
(iii) together with the financial statements required
under clauses (i) or (ii) above, a compliance certificate in
substantially the form of Exhibit F signed by a Financial
Officer of the Borrower showing the then current information
and calculations necessary to determine the Applicable Margin,
the Applicable Percentage and the Applicable Utilization Fee
Rate and compliance with this Agreement and stating that no
Event of Default or Default exists, or if any Event of Default
or Default exists, stating the nature and status thereof;
(iv) as soon as possible and in any event within five
days after the occurrence of each Default continuing on the
date of such statement, a statement
30
of a Financial Officer of the Borrower setting forth details
of such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(v) as soon as possible and in any event within five
days after any change in the Borrower's ▇▇▇▇▇'▇ Rating or S&P
Rating, notice thereof;
(vi) reasonably promptly after the sending or filing
thereof copies of all reports and registration statements that
the Borrower or any Subsidiary filed with the Securities and
Exchange Commission or any national securities exchange;
(vii) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(f); and
(viii) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
SECTION 5.02. Negative Covenants. At all times on and after
the Effective Date so long as any Revolving Credit Advance shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create, incur, or suffer to exist any Lien in,
of or on the Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at the
time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than sixty (60) days past due
or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation;
(iv) Utility easements, building restrictions and
such other encumbrances or charges against real property as
are of a nature generally existing with respect to properties
of a similar character and which do not in any material way
affect the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries;
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
31
(v) Liens described in the SEC Reports;
(vi) Liens pursuant to the Borrower's Mortgage and
Deed of Trust, dated as of October 1, 1924, as supplemented,
as described therein;
(vii) Liens pursuant to the Borrower's Indenture,
dated as of June 30, 1993, as supplemented, as described
therein, in connection with the issuance of debt securities
secured by mortgage bonds; and
(viii) Liens, including, without limitation, Liens
arising in connection with a Receivables Purchase Facility or
the issuance of Securitization Bonds, securing Debt of the
Borrower (other than Debt of the Borrower owed to any
Subsidiary) and/or securing Debt of the Borrower's
Subsidiaries (other than Debt of any Subsidiary owed to the
Borrower or any other Subsidiary), in an aggregate outstanding
amount not to exceed ten percent (10%) of the consolidated
assets of the Borrower and its Subsidiaries at any time.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any Significant
Subsidiary to do so, except that (i) any Significant Subsidiary may merge or
consolidate with or into any other Significant Subsidiary, (ii) any Significant
Subsidiary may merge into or dispose of assets to the Borrower, and (iii) the
Borrower may merge or consolidate with (a) MichCon, so long as the Borrower
shall be the surviving entity or MichCon shall expressly assume the obligations
under this Agreement or (b) any other Person so long as the Borrower shall be
the surviving entity and has, after giving effect to such merger or
consolidation, senior unsecured Debt outstanding rated at least BBB- by S&P and
Baa3 by ▇▇▇▇▇'▇; provided, in each case, that no Default shall have occurred and
be continuing at the time of such proposed transaction or would result
therefrom.
(c) Change in Nature of Business. Make, or permit any of its
Significant Subsidiaries to make, any material change in the nature of its
business as carried on the date hereof, other than as disclosed or contemplated
in the SEC Reports.
(d) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Revolving Credit Advance when the same becomes due and payable; or the Borrower
shall fail to pay any interest on any Revolving Credit Advance or make any other
payment of fees or other amounts payable
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
32
under this Agreement or any Note within three Business Days after the same
becomes due and payable; or
(b) Any representation or warranty made by the Borrower
herein, by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect when made;
or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.09(b), 5.01(d), (e) or (h) or
5.02, or (ii) the Borrower shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be performed
or observed if such failure shall remain unremedied for 10 days after written
notice thereof shall have been given to the Borrower by the Agent or any Lender;
or
(d) The Borrower or any of its Significant Subsidiaries shall
fail to pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $25,000,000 in the
aggregate (but excluding Debt outstanding hereunder and Nonrecourse Debt) of the
Borrower or such Significant Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Significant Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Significant Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money,
individually or in the aggregate, in excess of $25,000,000 shall be rendered
against the Borrower or any of its Significant Subsidiaries and either (i)
enforcement proceedings shall have been commenced by
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
33
any creditor upon such judgment or order or (ii) there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Significant Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) (i) any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) shall either
(A) acquire beneficial ownership of more than 25% of any outstanding class of
common stock of DTE Energy having ordinary voting power in the election of
directors of DTE Energy, or (B) obtain the power (whether or not exercised) to
elect a majority of DTE Energy's directors, or (ii) DTE Energy shall at any time
cease to hold 100% of the Voting Stock of the Borrower; or
(i) The Borrower or any of its ERISA Affiliates shall incur,
or, in the reasonable opinion of the Required Lenders, shall be reasonably
likely to incur liability in excess of $25,000,000 individually or in the
aggregate as a result of one or more of the following: (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of the Borrower or any of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(j) The Borrower and its Subsidiaries, on a Consolidated
basis, shall at any time cease to:
(i) Maintain a ratio of Consolidated EBITDA to
interest expense on all Debt (excluding (A) all Nonrecourse
Debt of the Borrower and its Subsidiaries, (B) Excluded
Hedging Debt and (C) the Junior Subordinated Debt) of not less
than 2:1 for each twelve-month period ending on the last day
of September, December, March and June of each year, or
(ii) Maintain a ratio of Consolidated Debt (excluding
(A) all Nonrecourse Debt of the Borrower and its Subsidiaries,
(B) Excluded Hedging Debt and (C) the Junior Subordinated
Debt) to Capitalization of not greater than .65:1; or
(k) any provision of any of the Loan Documents after delivery
thereof pursuant to Section 3.01 shall for any reason cease to be valid and
binding on or enforceable against the Borrower, or the Borrower shall so state
in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Revolving Credit Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Revolving Credit Advances, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Revolving Credit
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
34
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Revolving Credit Advances shall automatically
be terminated and (B) the Revolving Credit Advances, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Revolving Credit Advances), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders (or all of the Lenders to the
extent required by the terms of this Agreement), and such instructions shall be
binding upon all Lenders and all holders of Revolving Credit Advances; provided,
however, that the Agent shall not be required to take any action that exposes
the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee in respect of any Revolving Credit Advance as the owner thereof until
the Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee in respect of such Revolving Credit Advance, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
35
pursuant hereto; and (vi) shall incur no liability under or in respect of this
Agreement by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Barclays and Affiliates. With respect to its
Commitment, the Revolving Credit Advances made by it and any Note issued to it,
Barclays shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Barclays in its individual capacity. Barclays and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Barclays were not the Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of their respective Revolving Credit Advances
(or if no Revolving Credit Advances are at the time outstanding or if any
Revolving Credit Advances are owing to Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of any Loan Document or any action taken or
omitted by the Agent under any Loan Document, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, any Loan Document, to the extent that the
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
36
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a commercial bank organized under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Revolving Credit Advances or
any fees or other amounts payable hereunder, (d) except as provided in Section
2.16, postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Advances or any fees or other amounts payable hereunder,
(e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Revolving Credit Advances, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder or (f) amend this Section 8.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered, if to the Borrower, at its address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Treasurer; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its address at ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
or, as to the Borrower or the Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answerback, respectively, except that notices and
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
37
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses.
(a) The Borrower agrees to pay on demand, upon presentation of
a statement of account and absent manifest error, all reasonable costs and
reasonable expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the
Notes, each other Loan Document and the other documents to be delivered
hereunder and thereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and reasonable expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all reasonable costs and reasonable expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable internal and external
counsel fees and expenses, provided such fees and expenses are not duplicative),
in connection with the "workout", restructuring or enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify, to the extent legally
permissible, and hold harmless the Agent and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Notes, this Agreement, the other Loan Documents any of
the transactions contemplated herein or therein or the actual or proposed use of
the proceeds of the Revolving Credit Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
38
willful misconduct. The Borrower also agrees not to assert any claim against the
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Notes, this Agreement, the other Loan Documents
any of the transactions contemplated herein or therein or the actual or proposed
use of the proceeds of the Revolving Credit Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Revolving
Credit Advance, as a result of a payment or Conversion pursuant to Section
2.07(d) or (e), 2.09 or 2.11, acceleration of the maturity of the Revolving
Credit Advances pursuant to Section 6.01, or for any other reason, the Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses that it may reasonably
incur as a result of such payment or Conversion, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Revolving Credit Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.10, 2.13 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Revolving Credit Advances due and payable pursuant to
the provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under the Loan Documents and any Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender and its Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
39
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders to any Person.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender may, with the prior consent of the Agent (which consent shall
not be unreasonably withheld) and (for so long as no Default has occurred and is
continuing) the Borrower (which consent shall not be unreasonably withheld)
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owed to it and any Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this Agreement
and, for so long as no Default has occurred and is continuing, shall be made
concurrently with an assignment in a ratable amount of such Lender's rights and
obligations under the Three-Year Agreement (including, without limitation, all
or a portion of its "Commitment", "Revolving Credit Advances" owed to it and any
"Note" or "Notes" held by it under (and as each such term is defined in) the
Three-Year Agreement), (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, and (iv) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,000. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
40
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after the Borrower's receipt of such notice, if requested by the applicable
Lender, the Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered Note a new Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, if requested by such assigning Lender, a new Note to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
(d) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses and
Commitment of, and principal amount of Revolving Credit Advances owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and any Note or Notes held by it); provided, however, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the owner of
such Revolving Credit Advances for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
41
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment or waiver of
any provision of this Agreement or any Note, or any consent to any departure by
the Borrower therefrom, except to the extent that such amendment, waiver or
consent would (A) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, or (B) increase the
Commitments, in each case to the extent subject to such participation, or
postpone any date fixed for any payment of principal of, or interest on, the
Revolving Credit Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation. Each participant shall be
entitled to the benefits of Sections 2.10, 2.11 and 2.13 to the same extent as
if it were a Lender and had acquired its interest under this Agreement by an
assignment made pursuant to this Section 8.07, provided, however, that in no
event shall the Borrower be obligated to make any payment with respect to such
Sections that is greater than the amount that the Borrower would have otherwise
made had no participations been sold under this Section 8.07(e).
(f) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time (i) create a security interest in all or a
portion of its rights under this Agreement (including, without limitation, the
Revolving Credit Advances owing to it and the Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System or (ii) with notice to the Agent and the
Borrower, assign all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Revolving Credit Advances owed to it and the Note or Notes held by it) to
any of its Affiliates.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Designating Lender") may grant to one or more special purpose
funding vehicles (each an "SPV"), identified as such in writing from time to
time by the Designating Lender to the Agent and the Borrower, the option to
provide to the Borrower all or any part of any Revolving Credit Advance that
such Designating Lender would otherwise be obligated to make to the Borrower
pursuant to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPV to make any Revolving Credit Advance, (ii) if an SPV
elects not to exercise such option or otherwise fails to provide all or any part
of such Revolving Credit Advance, the Designating Lender shall be obligated to
make such Revolving Credit Advance pursuant to the terms hereof, (iii) the
Designating Lender shall remain liable for any indemnity or other payment
obligation with respect to its Commitment hereunder and (iv) no SPV or
Designating Lender shall be entitled to receive any greater amount under this
Agreement than the Designating Lender would have been entitled to receive had
the Designating Lender not otherwise granted such SPV the option to provide any
Revolving Credit Advance to the Borrower. The making of a Revolving Credit
Advance by an SPV hereunder shall utilize the Commitment of the Designating
Lender to
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
42
the same extent, and as if, such Revolving Credit Advance were made by such
Designating Lender.
(i) Each party hereto hereby acknowledges and agrees that no
SPV shall have the rights of a Lender hereunder, such rights being retained by
the applicable Designating Lender. Accordingly, and without limiting the
foregoing, each party hereby further acknowledges and agrees that no SPV shall
have any voting rights hereunder and that the voting rights attributable to any
Revolving Credit Advance made by an SPV shall be exercised only by the relevant
Designating Lender and that each Designating Lender shall serve as the
administrative agent and attorney-in-fact for its SPV and shall on behalf of its
SPV receive any and all payments made for the benefit of such SPV and take all
actions hereunder to the extent, if any, such SPV shall have any rights
hereunder. No additional Note shall be required to evidence the Revolving Credit
Advances or portion thereof made by an SPV; and the related Designating Lender
shall be deemed to hold its Note or Notes, if any, as administrative agent for
such SPV to the extent of the Revolving Credit Advances or portion thereof
funded by such SPV. In addition, any payments for the account of any SPV shall
be paid to its Designating Lender as administrative agent for such SPV.
(j) Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable so long as, and to the extent that, the related
Designating Lender provides such indemnity or makes such payment; provided, with
respect to such agreement by the Borrower that the related Designating Lender
shall not be in breach of its obligation to make Revolving Credit Advances to
the Borrower hereunder. In furtherance of the foregoing, each party hereto
hereby agrees (which agreements shall survive the termination of this Agreement)
that prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other person in instituting against,
such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof; provided,
with respect to such agreement by the Borrower that the related Designating
Lender shall not be in breach of its obligation to make Revolving Credit
Advances to the Borrower hereunder. Notwithstanding the foregoing, the
Designating Lender unconditionally agrees to indemnify the Borrower, the Agent
and each Lender against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be incurred by or asserted against the
Borrower, the Agent or such Lender, as the case may be, in any way relating to
or arising as a consequence of any such forbearance or delay in the initiation
of any such proceeding against its SPV.
(k) In addition, notwithstanding anything to the contrary
contained in subsection 8.07(h), (i), (j) or (k) or otherwise in this Agreement,
any SPV may (i) at any time and without paying any processing fee therefor,
assign or participate all or a portion of its interest in any Revolving Credit
Advances to the Designating Lender or to any financial institutions providing
liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Revolving Credit Advances and (ii) disclose on a
confidential basis any non-public information relating to its Revolving Credit
Advances to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancements to such SPV.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
43
Subsection 8.07(h), (i), (j) or (k) may not be amended without the written
consent of any Designating Lender affected thereby.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender and (d) as requested or
required by any state, federal or foreign authority or examiner regulating banks
or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United States
of America sitting in New York City, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or the
Notes, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or the Notes in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
44
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
REMAINDER OF PAGE INTENTIONALLY BLANK
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
45
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
THE
DETROIT EDISON COMPANY
By:
--------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE
DETROIT EDISON COMPANY 364-DAY
CREDIT AGREEMENT
Lenders
BARCLAYS BANK PLC, Individually and as
Administrative Agent
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., as Co-Syndication
Agent
By:
----------------------------------------
Name:
Title:
BANC ONE CAPITAL MARKETS, INC., as
Co-Syndication Agent
By:
----------------------------------------
Name:
Title:
CITIBANK, N.A., as a Lender
By:
----------------------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE - CHICAGO), as a
Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE
DETROIT EDISON COMPANY 364-DAY
CREDIT AGREEMENT
THE BANK OF NEW YORK, as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE
DETROIT EDISON COMPANY 364-DAY
CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA, as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE
DETROIT EDISON COMPANY 364-DAY
CREDIT AGREEMENT
KEY BANK NATIONAL ASSOCIATION, as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE
DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
UBS AG (STAMFORD BRANCH), as a Lender
By:
----------------------------------------
Name:
Title:
UBS AG (STAMFORD BRANCH), as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE
DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
COMERICA BANK, as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE
DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON, as a Lender
By:
----------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A., as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
BAYERISCHE LANDESBANK GIROZENTRALE (CAYMAN
ISLANDS BRANCH), as a Lender
By:
----------------------------------------
Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE (CAYMAN
ISLANDS BRANCH), as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
MELLON BANK, N.A., as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
FIFTH THIRD BANK (EASTERN MICHIGAN), as a
Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
STANDARD FEDERAL BANK, N.A., as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
FIRST INDEPENDENCE BANK OF DETROIT, as a
Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY, as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as a Lender
By:
----------------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
SIGNATURE PAGE TO THE DETROIT EDISON COMPANY 364-DAY CREDIT AGREEMENT
SCHEDULE I
THE DETROIT EDISON COMPANY
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
---------------------- ----------------------- ------------------------- ----------
Citibank, N.A. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Bank One, NA One Bank One Plaza Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇/
▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ D'▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Nova Scotia ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mystro ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Key Bank National Association ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
UBS AG, Stamford Branch ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Comerica Bank ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic Lending ▇▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse First ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
1
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
---------------------- ----------------------- ------------------------- ----------
Union Bank of California, N.A. Energy Capital Services Same as Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Bayerische Landesbank ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic Lending Office
Girozentrale, Cayman Islands ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Mellon Bank, N.A. 3 Mellon Center - Room 1203 Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Leiersapf
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Fifth Third Bank, Eastern c/o Madisonville Operations Same as Domestic Lending Office
Michigan Center
MD 1M0C2B
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Standard Federal Bank, N.A. 2600 W. Big Beaver Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
First Independence Bank of ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Northern Trust Company ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Funding Contact
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Same as Domestic ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopier:
Total: $135,000,000
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
2
PRICING SCHEDULE
LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS LEVEL IV STATUS LEVEL V STATUS
-------------- --------------- ---------------- --------------- --------------
Applicable 0.125% 0.150% 0.175% 0.250% 0.400%
Percentage
Applicable Margin 0.750% 0.850% 0.950% 1.125% 1.975%
(Eurodollar Rate)
Applicable 0.125% 0.125% 0.125% 0.125% 0.250%
Utilization Fee
Applicable Margin 0.0% 0.0% 0.0% 0.0% 0.0%
(Base Rate)
For the purposes of this Schedule, the following terms have
the following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the
Borrower's ▇▇▇▇▇'▇ Rating is A3 or better or the Borrower's S&P Rating is A- or
better.
"Level II Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status and (ii) the Borrower's ▇▇▇▇▇'▇
Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level III Status" exists at any date if, on such date, (i)
the Borrower has not qualified for Level I Status or Level II Status and (ii)
the Borrower's ▇▇▇▇▇'▇ Rating is Baa2 or better or the Borrower's S&P Rating is
BBB or better.
"Level IV Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status or Level III
Status and (ii) the Borrower's ▇▇▇▇▇'▇ Rating is Baa3 or better or the
Borrower's S&P Rating is BBB- or better.
"Level V Status" exists at any date if, on such date, the
Borrower has not qualified for Level I Status, Level II Status, Level III or
Level IV Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the rating issued by
▇▇▇▇▇'▇ and then in effect with respect to the Borrower's senior unsecured
long-term debt securities without third-party credit enhancement.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
3
"S&P Rating" means, at any time, the rating issued by S&P and
then in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin, Applicable Utilization Fee and
Applicable Percentage shall be determined in accordance with the foregoing table
based on the Borrower's Status as determined from its then-current ▇▇▇▇▇'▇
Rating and S&P Rating. The credit rating in effect on any date for the purposes
of this Schedule is that in effect at the close of business on such date. If at
any time the Borrower does not have both a ▇▇▇▇▇'▇ Rating and an S&P Rating,
Level V Status shall exist.
In the event that a split occurs between the two ratings, then
the Status corresponding to the lower of the two ratings shall apply. However,
if the split is greater than one level, then the pricing shall be based upon the
Status one level above the Status corresponding to the lower of the two ratings.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
4
EXHIBIT A
FORM OF REVOLVING CREDIT PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 2002
FOR VALUE RECEIVED, the undersigned, THE DETROIT EDISON
COMPANY, a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Revolver Termination Date (each as defined in
the Credit Agreement referred to below), the principal sum of U.S.$[amount of
the Lender's Commitment in figures] or, if less, the aggregate principal amount
of the Revolving Credit Advances made by the Lender to the Borrower pursuant to
the 364-Day Credit Agreement dated as of October 25, 2002 (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined) among the Borrower, the Lender and certain
other lenders parties thereto, and Barclays Bank PLC, as Agent for the Lender
and such other lenders outstanding on the Revolver Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Barclays Bank PLC, as Agent, at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Account No. 050-019104, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, in same day funds. Each Revolving Credit Advance owing to the Lender
by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
THE DETROIT EDISON COMPANY
By
---------------------------------
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
5
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF AMOUNT OF PRINCIPAL PAID OR UNPAID PRINCIPAL NOTATION
DATE ADVANCE PREPAID BALANCE MADE BY
---- --------- --------------------------- ---------------- --------
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
6
EXHIBIT B
FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Barclays Bank PLC, as Agent for the Lenders parties
to the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ [Date]
Ladies and Gentlemen:
The undersigned, THE DETROIT EDISON COMPANY, refers to the
364-Day Credit Agreement, dated as of October 25, 2002 (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto and Barclays Bank PLC, as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, ____.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
7
Very truly yours,
THE DETROIT EDISON COMPANY
By
---------------------------------
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
8
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of
October 25, 2002 (as amended or modified from time to time, the "364-Day Credit
Agreement") and to the Three-Year Credit Agreement dated October 25, 2002 (as
amended or modified from time to time, the "Three-Year Credit Agreement", and
together with the 364-Day Credit Agreement, the "Credit Agreements") each among
The Detroit Edison Company, a Michigan corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreements) and Barclays Bank PLC, as agent for the
Lenders (the "Agent"). Terms defined in each of the Credit Agreements are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, (a) an interest in
and to the Assignor's rights and obligations under the 364-Day Credit Agreement
as of the date hereof equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the 364-Day Credit
Agreement, and (b) an interest in and to the Assignor's rights and obligations
under the Three-Year Credit Agreement as of the date hereof equal to the
percentage interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the Three-Year Credit Agreement. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of the Revolving
Credit Advances owing to the Assignee under each of the Credit Agreements will
be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with each of
the Credit Agreements or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of each of the Credit Agreements or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under each of the Credit Agreements or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note or
Notes held by the Assignor, if any, and requests that the Agent exchange such
Note or Notes for a new Note or Notes payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto and the
applicable Credit Agreement or new Notes payable to the order of the Assignee in
an amount equal to the Commitment assumed by the Assignee pursuant hereto and
the applicable Credit Agreement and the Assignor in an amount equal to the
Commitment retained by the Assignor under the applicable Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
each of the Credit Agreements, together with copies of the financial statements
referred to in each Section 4.01
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
9
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
the Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under each of the Credit
Agreements; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under each of the Credit Agreements as are delegated
to the Agent by the terms thereof, together with such powers and discretion as
are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of each of the Credit
Agreements are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.13 of each of the
Credit Agreements.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to each of the Credit
Agreements and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under each of the Credit Agreements.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under each of the
Credit Agreements and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest, facility
fees and the Utilization Fee with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under each of
the Credit Agreements and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
10
Schedule 1
to
Assignment and Acceptance
364-Day Three-Year
Credit Credit
Agreement Agreement
--------- ----------
Percentage interest assigned: _______________% _______________%
Assignee's Commitment: $_______________ $_______________
Aggregate outstanding principal amount of Revolving Credit Advances
assigned: $_______________ $_______________
Principal amount of Revolving Credit Advances payable to Assignee: $_______________ $_______________
Principal amount of Revolving Credit Advances payable to Assignor: $_______________ $_______________
Effective Date(1): $_______________ $_______________
[NAME OF ASSIGNOR], as Assignor
By:
-------------------------------
Title:
Dated:
[NAME OF ASSIGNEE], as Assignee
By:
-------------------------------
Title:
Dated:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
----------
(1) This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
11
Accepted [and Approved](2) this
day of
, As Agent
-------------------------------------------
By:
-------------------------------------------------
Title:
[Approved this [ ] day of
-------------------------
THE DETROIT EDISON COMPANY
By:
-------------------------------------------------
Title:](3)
----------
(2) Required if the Assignee is an Eligible Assignee solely by reason of clause
(viii) of the definition of "Eligible Assignee".
(3) To be added only if the consent of the Borrower is required by the terms of
the Credit Agreement.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
12
EXHIBIT D
FORM OF CERTIFICATE
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
OFFICER'S CERTIFICATE
I, ▇.▇. ▇▇▇▇▇▇, Assistant Treasurer of DTE ENERGY COMPANY
("DTE"), THE DETROIT EDISON COMPANY ("DECO") and MICHIGAN CONSOLIDATED GAS
COMPANY ("MichCon"), each a Michigan corporation (each a "Borrower" and
collectively the "Borrowers"), DO HEREBY CERTIFY, pursuant to Section 3.01 of
each of (i) the 364-Day and Three-Year Credit Agreements, dated as of October
25, 2002 among DTE, the financial institutions from time to time parties thereto
(the "DTE Lenders"), and Citibank, N.A., as agent for said DTE Lenders (the "DTE
Credit Agreements"), (ii) the 364-Day and Three-Year Credit Agreements, dated as
of October 25, 2002, among DECO, the financial institutions from time to time
parties thereto (the "DECO Lenders") and Barclays Bank PLC, as agent for said
DECO Lenders (the "DECO Credit Agreements"), and (iii) the 364-Day and
Three-Year Credit Agreements, dated as of October 25, 2002, among MichCon, the
financial institutions from time to time parties thereto (the "MichCon Lenders",
and, together with the DTE Lenders and the DECO Lenders, the "Lenders") and Bank
One, NA, as agent for said Lenders (the "MichCon Credit Agreements", and
together with the DTE Credit Agreements and the DECO Credit Agreements, the
"Credit Agreements"), that the terms defined in the Credit Agreements are used
herein as herein defined and, further, that:
1. The Effective Date shall be October 25, 2002.
2. The representation and warranties contained in Section 4.01 of each
of the Credit Agreements are true and current on and as of the date hereof.
3. No event has occurred and is continuing that constitutes a Default.
4. Each Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Michigan.
5. The execution, delivery and performance by each Borrower of the Loan
Documents to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, are within each Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) each Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting each Borrower.
6. All governmental and third party consents and approvals necessary in
connection with the transactions contemplated by the Loan Documents to which
each Borrower is a party have been obtained, including in the case of DECO, the
orders of the Federal Energy Regulatory Commission (without the imposition of
any conditions that are not acceptable to the Lenders),
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
13
and remain in effect, and no law or regulation is applicable that restrains,
prevents or imposes materially adverse conditions upon each Borrower with
respect to the transactions contemplated by the Loan Documents to which it is a
party.
7. Each of the Loan Documents to which each of the Borrowers is a party
when delivered pursuant to each of the Credit Agreements has been duly executed
and delivered by each Borrower. Each of the other Loan Documents to which each
Borrower is a party when delivered hereunder will be, the legal, valid and
binding obligation of each Borrower enforceable against each Borrower in
accordance with their respective terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally.
8. The Consolidated balance sheets of each of DTE, DECO, MichCon and
their respective Subsidiaries as at December 31, 2001, and the related
Consolidated statements of income and cash flows of each of DTE, DECO, MichCon
and their respective Subsidiaries for the fiscal year then ended, accompanied by
an opinion of Deloitte & Touche LLP, independent public accountants, and the
condensed Consolidated balance sheets of each of DTE, DECO, MichCon and their
respective Subsidiaries as at June 30, 2002 and the related condensed
Consolidated statements of income and cash flows of each of DTE, DECO, MichCon
and their respective Subsidiaries for the six months then ended, copies of which
have been furnished to each Lender, attached hereto as Annex A-1 through A-6 are
hereby duly certified by the undersigned, as fairly presenting, subject in the
case of said balance sheet as at June 30, 2002, and said statements of income
and cash flows for the six months then ended, to year-end audit adjustments, the
Consolidated financial condition of each of DTE, DECO, MichCon and their
respective Subsidiaries, as applicable, as at such dates and the Consolidated
results of the operations of each of DTE, DECO, MichCon and their respective
Subsidiaries, as applicable, for the periods ended on such dates, all in
accordance with generally accepted accounting principles consistently applied,
and the respective reports in which such financial statements are contained are
hereby designated as the "SEC Reports" for purposes of the Credit Agreements.
Since June 30, 2002 there has been no Material Adverse Change with respect to
any of the Borrowers.
9. None of the Borrowers is a party to an indenture, loan or credit
agreement, lease, guarantee, mortgage, security agreement, bond, note or other
agreement or instrument, and there are no orders, writs, judgments, awards,
injunctions or decrees, that affect or purport to affect each Borrower's right
to borrow money or each Borrower's obligations under the Loan Documents to which
it is a party.
10. Each of the Existing Credit Agreements is terminated (except for
those provisions that expressly survive the termination thereof) upon
effectiveness of the Credit Agreements on the Effective Date; as of the date
hereof, there are no loans outstanding under any of the Existing Credit
Agreements and all amounts owed to the lender or agents thereunder have been
paid in full.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
14
Dated as of the ___ day of October, 2002.
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
By
--------------------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
15
EXHIBIT E
FORM OF OPINION OF COUNSEL TO THE BORROWER
[Date]
To each of the Lenders set forth
in Schedule A hereto
DTE Energy Company
The Detroit Edison Company
Michigan Consolidated Gas Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to (i) Section
3.01(h)(v) of each of the 364-Day and Three-Year Credit Agreements, dated as of
October 25, 2002, among DTE Energy Company ("DTE"), the financial institutions
from time to time parties thereto (the "DTE Lenders"), and Citibank, N.A., as
agent for said DTE Lenders, Barclays Bank PLC and Banc One Capital Markets,
Inc., as Co-Syndication Agents, and with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as Lead
Arranger and Sole Book Runner (the "DTE Credit Agreements"), (ii) Section
3.01(h)(v) of each of the 364-Day and Three-Year Credit Agreements, dated as of
October 25, 2002, among The Detroit Edison Company ("DECO"), the financial
institutions parties thereto (the "DECO Lenders") and Barclays Bank PLC, as
agent for said DECO Lenders, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Banc One Capital
Markets, Inc., as Co-Syndication Agents, and with Barclays Capital and Banc One
Capital Markets, Inc., as Co-Lead Arrangers and Joint Book Runners (the "DECO
Credit Agreements"), and (iii) Section 3.01(h)(v) of each of the 364-Day and
Three-Year Credit Agreements, dated as of October 25, 2002, among Michigan
Consolidated Gas Company ("MichCon"), the financial institutions parties thereto
(the "MichCon Lenders", and together with the DTE Lenders and the DECO Lenders,
the "Lenders") and Bank One, NA, as agent for said Lenders, Barclays Bank PLC
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as Co-Syndication Agents, and with Banc One
Capital Markets, Inc. and Barclays Capital, as Co-Lead Arrangers and Joint Book
Runners (the "MichCon Credit Agreements", and together with the DTE Credit
Agreements and the DECO Credit Agreements, the "Credit Agreements"). Terms
defined in each Credit Agreement are used herein as therein defined.
I am the Associate General Counsel of DTE, and the Vice
President and General Counsel of both DECO and MichCon, and have acted as
counsel for each of the Borrowers in connection with the preparation, execution
and delivery of the Loan Documents.
In that connection, I, in conjunction with the members of my
staff, have examined:
(i) Each Loan Document, executed by each of the
parties thereto.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
16
(ii) The other documents furnished by each of the
Borrowers pursuant to Article III of each of the Credit
Agreements.
(iii) The Restated Articles of Incorporation of DTE,
the Restated Articles of Incorporation of DECO, and the
Restated Articles of Incorporation of MichCon and all
amendments thereto (the "Charters").
(iv) The By-Laws of each of the Borrowers and all
amendments thereto (the "By-Laws").
(v) Certificates from the State of Michigan attesting
to the continued corporate existence and good standing of each
of the Borrowers.
I have also examined the originals, or copies certified to my satisfaction, of
the documents listed in a certificate of a Financial Officer of each of the
Borrowers, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds, notes and
other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect each
Borrower's right to borrow money or each Borrower's obligations under the Loan
Documents to which it is party. In addition, I have examined the originals,
copies certified to my satisfaction, of such other corporate records of each
Borrower, certificates of public officials and of officers of each Borrower, and
agreements, instruments and other documents, as we have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to such
opinions, I have, when relevant facts were not independently established by me,
relied upon certificates of public officials. I have assumed the due execution
and delivery, pursuant to due authorization, of each of the Credit Agreements by
the Lenders and the applicable Agent.
My opinions expressed below are limited to the law of the
State of Michigan and the federal law of the United States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. Each of the Borrowers is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan.
2. The execution, delivery and performance by each of the Borrowers of
the Loan Documents to which it is party, and the consummation of the
transactions contemplated thereby, are within each Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Charters or the By-Laws of each Borrower or (ii) any law,
rule or regulation applicable to each of the Borrowers (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) any contractual or legal restriction contained in any document
listed in the Certificate or, to the best of my knowledge (after due inquiry),
contained in any other similar document.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for the due
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
17
execution, delivery, recordation, filing or performance by each Borrower of the
Loan Documents to which each is a party, except such as have been obtained,
including, in the case of DECO, the orders of the Federal Energy Regulatory
Commission.
4. Each Loan Document has been duly executed and delivered on behalf of
the Borrower thereto.
5. Except as may have been disclosed to you in the SEC Reports
designated in the Certificate, to the best of my knowledge (after due inquiry)
there are no pending or overtly threatened actions or proceedings affecting each
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material Adverse Effect
or (ii) purport to affect the legality, validity, binding effect or
enforceability of any Loan Documents or the consummation of the transactions
contemplated thereby.
6. In a properly presented case, a Michigan court or a federal court
sitting in the State of Michigan applying Michigan choice of law rules should
give effect to the choice of law provisions of the Loan Documents and should
hold that such Loan Documents are to be governed by the laws of the State of New
York rather than the laws of the State of Michigan. In rendering the foregoing
opinion, I note that by their terms the Loan Documents expressly select New York
law as the laws governing their interpretation and that the Loan Documents
governed by New York law were delivered by the parties thereto to the Agent in
New York. The choice of law provisions of the Loan Documents are not voidable
under the laws of the State of Michigan.
7. If, despite the provisions of Section 8.09 of each of the Credit
Agreements wherein the parties thereto agree that the Loan Documents shall be
governed by, and construed in accordance with, the laws of the State of New
York, a court of the State of Michigan or a federal court sitting in the State
of Michigan were to hold that the Loan Documents are governed by, and to be
construed in accordance with the laws of the State of Michigan, the respective
Loan Documents would be, under the laws of the State of Michigan, legal, valid
and binding obligations of the applicable Borrower, enforceable against such
Borrower in accordance with their respective terms.
8. Neither the Borrowers nor any of their Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended; DECO is a "public utility company"
and a "subsidiary company" of DTE, which is a "holding company" as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended (the
"1935 Act"), and such "holding company" and DECO are currently exempt from the
provisions of the 1935 Act (except Section 9 thereof); and MichCon is a "public
utility company" and a "subsidiary company" of MichCon Holdings, Inc., which is
a "holding company" and a "subsidiary company" of DTE Enterprises, Inc., which
is a "holding company" and a "subsidiary company" of DTE, as such terms are
defined in the 1935 Act, and such "holding companies" and MichCon are currently
exempt from the provisions of the 1935 Act (except Section 9 thereof);
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
18
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 7 above as to
enforceability is subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors' rights
generally.
(b) My opinion in paragraph 7 above as to
enforceability is subject to the effect of general principles
of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or
at law).
(c) I express no opinion as to participation and the
effect of the law of any jurisdiction other than the State of
Michigan wherein any Lender may be located or wherein
enforcement of the Loan Documents may be sought that limits
the rates of interest legally chargeable or collectible.
Very truly yours,
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
19
Schedule A
Each of the Lenders party to the 364-Day
Credit Agreement, dated as of October 25,
2002, among DTE, Citibank, N.A., as Lender
and Agent, and Banc One Capital Markets,
Inc. and Barclays Bank PLC, as
Co-Syndication Agents, and with ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., as Lead Arranger and Sole
Book Runner.
Each of the Lenders party to the Three-Year
Credit Agreement, dated as of October 25,
2002, among DTE, Citibank, N.A., as Lender
and Agent, and Banc One Capital Markets,
Inc. and Barclays Bank PLC, as
Co-Syndication Agents, and with ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as Lead Arranger and Sole
Book Runner.
Each of the Lenders party to the 364-Day
Credit Agreement, dated as of October 25,
2002, among DECO, Barclays Bank PLC, as
Lender and Agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. and Banc One Capital Markets, Inc., as
Co-Syndication Agents, and with Barclays
Capital and Banc One Capital Markets, Inc.,
as Co-Lead Arrangers and Joint Book Runners.
Each of the Lenders party to the Three-Year
Credit Agreement, dated as of October 25,
2002, among DECO, Barclays Bank PLC, as
Lender and Agent, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. and Banc One Capital Markets, Inc., as
Co-Syndication Agents, and with Barclays
Capital and Banc One Capital Markets, Inc.,
as Co-Lead Arrangers and Joint Book Runners.
Each of the Lenders party to the 364-Day
Credit Agreement, dated as of October 25,
2002, among MichCon, Bank One, NA, as Lender
and Agent, and Barclays Bank PLC and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., as Co-Syndication Agents,
and with Banc One Capital Markets, Inc. and
Barclays Capital,
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
20
as Co-Lead Arrangers and Joint Book Runners.
Each of the Lenders party to the Three-Year
Credit Agreement, dated as of October 25,
2002, among MichCon, Bank One, NA, as Lender
and Agent, and Barclays Bank PLC and ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., as Co-Syndication Agents,
and with Banc One Capital Markets, Inc. and
Barclays Capital, as Co-Lead Arrangers and
Joint Book Runners.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
21
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
364-Day Credit Agreement dated as of October 25, 2002 (as amended or modified
from time to time, the "Agreement"; the terms defined therein being used herein
as therein defined) among The Detroit Edison Company, a Michigan corporation
(the "Borrower"), the lenders parties thereto, and Barclays Bank PLC, as Agent
for the lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review
of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the
attached financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or
event which constitutes an Event of Default or Default during
or at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate,
except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain
covenants of the Agreement, all of which data and computations
are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
22
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this __ day of __________,
____.
THE DETROIT EDISON COMPANY
By
--------------------------------
Name:
Title:
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
23
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Section 5.01(h) of
the Agreement
FINANCIAL COVENANTS
Ratio of Consolidated EBITDA to Interest Expense on Debt (Section 6.01(j)(i)).
(A) Numerator: Consolidated EBITDA: $_____
(B) Denominator:
(i) Interest Expense on Debt: $_____
(ii) Minus: Interest Expense on all Nonrecourse Debt of the
Borrower and its Subsidiaries: -$____
(iii) Minus: Interest Expense on Excluded Hedging Debt: -$____
(iv) Minus: Interest Expense on Junior Subordinated Debt: -$____
(v) Denominator: (B)(i) minus (B)(ii) through (B)(iv): $_____
(C) State whether the ratio of (A) to (B)(v) was not less than 2:1 for the
twelve-month period ending on the last day of __________: YES/NO
Ratio of Consolidated Debt to Capitalization (Section 6.01(j)(ii)).
(B) Numerator:
(i) Consolidated Debt: $_____
(ii) Minus: Nonrecourse Debt of the Borrower and its
Subsidiaries: -$____
(iii) Minus: Excluded Hedging Debt: -$____
(iv) Minus: Junior Subordinated Debt: -$____
(v) Numerator: (A)(i) minus (A)(ii) through (A)(iv): $_____
(B) Denominator: Capitalization: $_____
(C) State whether the ratio of (A)(v) to (B) was not greater than .65:1: YES/NO
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
24